Nilva v. United States

PETITIONER:Allen I. Nilva
RESPONDENT:United States
LOCATION:Congress

DOCKET NO.: 37
DECIDED BY:
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 352 US 385 (1957)
ARGUED: Nov 13, 1956
DECIDED: Feb 25, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – November 13, 1956 in Nilva v. United States

Earl Warren:

Number 37, Allen I. Nilva, Petitioner, versus United States of America.

Richard J. Blanchard:

May it please the Court.

Earl Warren:

Mr. Blanchard, you may proceed.

Richard J. Blanchard:

May it please the Court.

With the Court’s permission, I would like to make a brief review of the facts of this case.

In 1953, petitioner, Mr. Christianson and Mr. Paster were indicted and tried for the crime of conspiring to violate the Johnson Act, which prohibits the interstate shipment of gambling devices.

As a result of that trial, petitioner was acquitted.

The jury disagreed as to Mr. Christianson and Mr. Paster.

The following year, the Government retried the case against Mr. Christianson and Mr. Paster.

In preparing for the retrial of the Christianson case, the Government procured the issuance of subpoena duces tecum No. 160.

That subpoena was issued on March the 25th, returnable March the 29th, the date set for the beginning of the Christianson retrial.

On March the 29th, Mr. Paster moved to quash the subpoena.

The motion was denied and the District Judge Vogel issued an order compelling the Mayflower Distributing Company to whom the subpoena had been directed to forthwith comply.

On April the 1st, Mayflower Distributing Company purported to comply with the subpoena through petitioner, the vice president of Mayflower.

At a hearing in judge’s chambers on the return of subpoena 160, petitioner was put under oath and testified concerning the return.

The Court, dissatisfied with his testimony, issued an impounding order directing the Marshal of North Dakota to impound the records of Mayflower Distributing Company in St. Paul.

That order was issued and the records were impounded.

The Christianson retrial proceeded to a conclusion.

A determination of the Christianson retrial, the Court sua sponte issued an order to show cause why petitioner should not be cited for contempt and set forth three specifications.

Specification 1, charged him with contempt for false and evasive testimony.

Specification 2, charged him with contempt in disobedience of another subpoena, subpoena 78 and specification 3, charged contempt in disobedience of subpoena No. 160.

The show cause order was issued April 23rd.

It was set down for a hearing on April 27th.

On the morning of April 27th, petitioner asked for an extension of time which was granted until 3 o’clock that afternoon.

At termination of the afternoon hearing, the Court found petitioner guilty of contempt on all three specifications and sentenced him to one year and a day.

Petitioner took an appeal to the Eighth Circuit.

While the case was pending in the Eighth Circuit, the Government filed a supplemental record.

That supplemental record was discussed at great length last Thursday.

The supplemental record is the last half of the record now before this Court.

It consists of 68 pages.

Richard J. Blanchard:

Page 69 in the supplemental record, the last half of the record before this Court, is a motion of appellant to strike certain portions of the supplementary record.

Now, this supplementary record involves the indictment.

What page does it begin, Mr. Blanchard?

Richard J. Blanchard:

It’s the last half of the record, Your Honor.

The pagination begins with one at the beginning and repeats with one in the middle.

This supplemental record involves the indictment against Christianson, Paster, and petitioner.

It involves a modified indictment, carries the motion to quash the subpoenas filed by Paster at the beginning of the Christianson retrial.

It carries excerpts of some of the testimony given in the Christianson retrial.

It has also the — the Marshal’s receipt given to Mayflower Distributing Company for the documents impounded from Mayflower Distributing Company.

It involves the memorandum opinion of the trial court on the contempt hearing, and it involves a list of the witnesses or — correction, Your Honor.

It involves a list of the exhibits introduced by petitioner at the contempt hearing.

Petitioner in his motion to strike certain portions of this supplementary record before the Court of Appeals took no objection to the inclusion of the memorandum opinion of Judge Vogel nor did he take objection to the list of exhibits which he had introduced during the contempt hearing.

The Government does not undertake to support the other elements in the supplemental record and does not believe they are germane to this case.

The Government doesn’t care to support specification No.1, that is the specification charging contempt in that petitioner —

Could I ask you a question?

I’m a little confused on the record.

You say that you’re not supporting the supplemental record except that (Inaudible)

Richard J. Blanchard:

Yes, Your Honor.

We feel it’s not germane to the issue on this case.

The Government is supporting the conviction only on specification 3.

All other elements in the supplemental record are germane to specifications No.1 and 2, and we believe they have no relevancy to specification 3, except the memorandum opinion and petitioner’s list of exhibits in the contempt proceeding.

But you’re not objecting to the prior points.

Richard J. Blanchard:

Which are not objected to.

There were supplemental record points that were under (Inaudible) in the case.

Richard J. Blanchard:

That’s right, Your Honor.

In specification No.1, charging contempt in that petitioner gave false and evasive testimony the obstructing the administration of justice, the Government believes that this specification is controlled by In re Michael decided by this Court, 326 U.S.224.

There is nothing in the record as it appears before this Court to indicate that the obstruction of justice arose from the false and evasive testimony rather it appears that it arose from the non-production.

Even if it did arise from the false and evasive testimony, the Government doesn’t believe that the testimony of petitioner was adequately falsified or proved to be false by reliance upon the testimony of F.B.I. Agent Peterson, who testified during the Christianson retrial.

Felix Frankfurter:

Do you mind —

Richard J. Blanchard:

If the testimony —

Felix Frankfurter:

Do you mind, Mr. Blanchard (Inaudible)

Richard J. Blanchard:

I say —

Felix Frankfurter:

— before you get to the negative (Inaudible)

Richard J. Blanchard:

The Government doesn’t believe that — the testimony of petitioner which is alleged to be false is proved to be false either by the presentation of the impounded records in Court or by the testimony of F.B.I. Agent Peterson who testified in the Christianson retrial.

To use Agent Peterson’s testimony, to establish the falsity of petitioner’s testimony, would deprive petitioner of an opportunity to cross-examine the F.B.I. agent on the issue of the truth or falsity of his testimony.

For that reason, the Government doesn’t care to support specification No.1.

Specification —

Felix Frankfurter:

And that — that doesn’t flow into 3.

Richard J. Blanchard:

No, Your Honor.

Felix Frankfurter:

(Inaudible) with that.

Richard J. Blanchard:

I will.

I will now —

Felix Frankfurter:

Well, that seems to be the same.

I’m not arguing the case.

Richard J. Blanchard:

It doesn’t flow over 3 for this reason.

Judge Vogel, who tried the contempt proceeding, heard the Christianson retrial.

Now, as Your Honor mentioned in Thursday, he does have the advantage of knowing all of the facts.He had heard Peterson’s testimony in the original.

The introduction of Peterson’s testimony during the contempt proceeding was nothing new to the judge.

It could not have prejudiced him in his view of the case.

At least we don’t feel that it could.

Felix Frankfurter:

How can we know?

Richard J. Blanchard:

Only —

Felix Frankfurter:

It’s by (Inaudible) to the judge, the highest relevance, as I suppose, (Inaudible) to judge, isn’t that it?

Richard J. Blanchard:

Yes, Your Honor.

Now, the only judges who may have been influenced by Peterson’s testimony were the Court of Appeals who saw it for the first time.

But the Court of Appeals, in its opinion, set forth from the supplemental record on page 76 viewed the testimony of Agent Peterson as indicating the falsity of Nilva’s testimony, which would indicate that they correlated the F.B.I. agent’s testimony to specification No.1.

There’s no reference made to correlating it to specification 3 other than the broad statement on page 79 of the supplemental record in which they say that there is no reason why, under the circumstances here presented, Peterson’s testimony was not equally admissible as a summarization of voluminous records in both the Christianson case and the contempt proceedings.

Well, the Government doesn’t support that allegation — that statement, Your Honor.Specification No.2 charged petitioner with contempt and that he was disobedient of subpoena 78.

This subpoena 78 was directed to the Mayflower Distributing Company and required the production of records pertaining to 16 different accounts that the Mayflower Distributing Company had with its customers.

Specification No.2 charges petitioner in failing to produce five specific items, two ledger sheets and three invoices pertaining to accounts with Mr. Sandy and Mr. Bater.

Richard J. Blanchard:

In order to establish a contempt against petitioner, it would be incumbent upon the Government to prove the issuance and service of the subpoena the failure to comply and the existence of the documents at the time the subpoena was served.

There is nothing in this record which would indicate that the records called for or mentioned in specification No.2 were actually in existence at the time subpoena 78 was served.

But if we may revert to — advert to the supplemental record for one moment, it appears from the supplemental record that the testimony of James Christianson, a bookkeeper for the Mayflower Distributing Company indicates clearly there is a strong possibility that those records were actually destroyed and were nonexistence when subpoena 78 was served.

For that reason, the Government does not care to support the conviction on specification 2.

The Government does believe that the specification 3 charges a contempt and a conviction can be supported on that specification alone.

Subpoena 160, which underlies specification 3, is set forth in the record on page 24 and 25.

It clearly — it is addressed to the Mayflower Distributing Company.

It clearly calls for invoices, bills, checks, slips, papers, records, letters, and ledger sheets among others.

It is limited to a period from July the 1st, 1950 through April 30th, 1951.

It reflects — those papers are the reflect purchases, sales and trades of slot machines, flat-top or console, coin-operated device, whether new or used.

It is the used records that gave rise to this contempt proceeding.

Subpoena 160 was served upon Mayflower Distributing Company in March the 25th.

It was delivered to the Secretary Walter Johnson.

It called for a return March the 29th, the day the Christianson retrial began.

On that day, Mr. Paster, president of Mayflower move to quash.

The motion was overruled.

The Court issued a forthwith order to comply with the subpoena and compliance was had or purported to be had on April the 1st in the judges’ chambers.

The proceedings relative to the April 1st hearing are set forth on page 28 and 4 of the record, correction, Your Honor, page 5 of the record.

Earl Warren:

So, he actually have — he actually had from the 25th until the — 25th of March until the second of April to make you search, is that right?

Richard J. Blanchard:

April — April 1st, Your Honor.

That’s right.

Earl Warren:

April 1st.

The Government counsel brought petitioner and his counsel to the court’s chambers pointed out the subpoena had been served and said, “Now, this morning, they come in with only the records of new machines.”

This was on what date?

Richard J. Blanchard:

April 1st, 1954.

Earl Warren:

(Inaudible)

Richard J. Blanchard:

This was on the return day of the subpoena and the forthwith was ordered.

Earl Warren:

Well, the return date — the thing that’s confusing in a list that the return date was the 29th, is it not?

Richard J. Blanchard:

That’s right, Your Honor.

Earl Warren:

And —

Richard J. Blanchard:

And then, they move to quash —

Earl Warren:

Yes.

Richard J. Blanchard:

— which motion was denied.

Earl Warren:

Yes.

Richard J. Blanchard:

The Court then entered an order to comply forthwith with the subpoenas.

Compliance was attempted on April 1st.

Earl Warren:

Yes.

Richard J. Blanchard:

Government counsel pointed out to the Court that the only records petitioner had turned over in compliance with the subpoena were records dealing with the purchase of new machines.

Petitioner’s counsel said there were other records.

This is on page 6 of the record, “With relation to the use of secondhand machines, inventories were made of those machines and were furnished to the Attorney General.”

Now, the inventories of used slot machines furnished to the Attorney General were made under the Johnson Act.

The Johnson Act became effective January 2nd, 1951 and returns, commenced in July the 1st, 1951.

Government counsel pointed out that the inventories which were furnished to the Attorney General would be inventories of used machines as of July.

That is on page 7 of the record.

Petitioner said that they had only compiled records of used slot machines.

There are no records of any other kind.

This is on page 7.

I brought them all down.

I got everything we had.

On page 8, he again repeated.

He brought all of the records that he has of the compiled nature of used machines.

When Government counsel questioned the use of the word “compiled”, petitioner said, “There was nothing other than what appears in the records that you have at the present time before this Court.”

Government counsel dissatisfied with this return asked the petitioner be put under oath, which was done.

On page 9 of the record, government counsel asked petitioner if the records of the Mayflower Distributing Company Incorporated showed the purchase of secondhand slot machines during the month of January 1951, to which petitioner answered, “The records with reference to that matter have all been subpoenaed and are in evidence in the appellate court.”

Now, that has reference — that reference of the appellate court pertains to another case, Nilva versus United States, a Samuel Nilva.

Petitioner here is Allen Nilva.

That case is reported at 212 F.2d 115.

When government counsel again repeated the same question concerning the records of Mayflower reflecting slot machines, petitioner answered, “Well, I don’t know.

I can’t state whether they do or do not.

If there were any records, I know that the records were subpoenaed.”

Richard J. Blanchard:

That raises a doubt as to whether it remained subpoenaed in this case or that they were subpoenaed in the original Nilva.

I think it’s quite —

William J. Brennan, Jr.:

Where are you reading this at?

Richard J. Blanchard:

On page 10, Your Honor, the eighth line from the bottom.

I think it’s quite plausible to interpret that as meaning that petitioner knew that records of secondhand slot machines purchased in January were called for by subpoena No.160, issued in this case, although there’s still room to view it as pertaining to the other Nilva situation.

Following a colloquy between counsel and attorneys and the Court, Mr. Dibble, the government counsel again repeated the question, “Is there any record in the Mayflower Distributing Incorporation today?”

This is on page 15.

In their possession today, which would reflect the purchase of secondhand coin machines, slot machines during a month of February 1951 to which petitioner answered, “I have made a thorough search to the best of my ability.”

And he concluded, “Had been unable to find any records of any purchase in the month of March or when corrected, in the month of February.”

When asked specifically about the records of March 1951, he said, “There are no records.”

On page 16, when pushed further he said, “I have been unable to find the records you refer to.

There are no records, whatsoever.”

Government counsel then interrogated him, “Did you examine your daily ledger sheet for the months of January, February, March, April of 1951?”

To which petitioner answered “The daily ledger?

I am not sure whether we examined the daily ledger,” which would appear to be the basic book of any corporate enterprise.

In the middle of page 17, he states that he checked all incoming invoices, all outgoing invoices that we had, all our checks, all.

Well, everything that had anything to do with the purchase as well as anything that had anything to do with the sales, and they’re still speaking of used slot machines.

Now, on page 20, when government counsel rephrased his question and instead of speaking of the records of Mayflower as showing the purchases, he put it in terms of money.

He said, “If I had sold you five machines during the month of January in 1951 and came to you and told you that you hadn’t paid me for all of those, do you have any records that will show to the contrary in the Mayflower Distributing Company?”

To which petitioner answered, “I believe that we’d have that record on your account just like Bally.

Bally sold those machines, that’s why it was easy to find any matter relating to Bally or United because we dealt with them consistently.

We have the records of their running accounts and it’s easy to find out.

I presume that would be easy.”

It was then the government counsel announced that those were the records the subpoena called for.

On page 28 of the record is a transcript to the proceedings before the Court in a contempt proceeding.

The show cause order has discharged in specification 3 that petitioner had failed to produce a long series of items.

I will focus my attention only on items A, B, C and D, the general ledger of 1950, the general ledger of 1951, the journal of 1950 and 1951, and the check register of 1950 and 1951.

This show cause order issued April 23rd came on for hearing April 27th.

The Court opened by saying that the burden was upon petitioner to proceed.

That we understand to mean the burden of going forward with the case.

William J. Brennan, Jr.:

Excuse me, Mr. Blanchard.

Do you suggest that we need to be concerned only with A, B, C, and D?

Richard J. Blanchard:

That’s right, Your Honor.

William J. Brennan, Jr.:

And we may forget the rest of it?

Richard J. Blanchard:

Yes.

To which —

William J. Brennan, Jr.:

The — the Government rests its case on the third —

Richard J. Blanchard:

On the third specification —

William J. Brennan, Jr.:

— in respect to the Labor Act.

Richard J. Blanchard:

— and belief.

That’s right, Your Honor.

I believe the evidence in the record on those four items is enough to support this conviction on specification 3.

Petitioner’s counsel pointed out that petitioner was not the moving party and then immediately asked for further time to prepare the defense.

He believe that he hadn’t been given adequate time, then he asked for a bill of particulars pertaining to specification 1 as to where in petitioner had committed false and evasive answers.

The Court granted an extension until three that afternoon.

Now, the record will indicate that the documents impounded for Mayflower were in the courtroom at the time.

William J. Brennan, Jr.:

Where had they been meanwhile, Mr. Blanchard?

Richard J. Blanchard:

They had been on the Marshal’s custody, Your Honor.

William J. Brennan, Jr.:

Had he — had he taken them on the day they were impounded from the office?

Richard J. Blanchard:

I believe that took him three days to examine all of the records of Mayflower with the assistance of an agent, make the selection they needed, give a receipt to Mayflower, and transport the required documents back to Bismarck, North Dakota.

Those records, which were in Court, as I understand it, occupied one of these mail hand trucks, that many of them but we’re concerned only with the first four items in specification 3.

Government counsel, on page 33, was careful to point out at this time that this entire contempt proceeding was instituted by the Court on its own motion and not by the Government filing an application.

When the proceeding began that afternoon, Mr. — the petitioner took the stand, examined by his own counsel and on page 46 and 47 of the record, it’s indicated that petitioner’s counsel handed him Exhibit 1, which was the general ledger of the Mayflower Distributing Company.

The petitioner identified it.

He handed him Exhibit 2, which was the general ledger for 1951 of the Mayflower Distributing Company and he identified it.

When he got to — to Exhibit No. 3 and asked whether he had examined Exhibit No. 3, petitioner answered, “Yes, sir, I have examined this record.”

Now, this is on page 47.

“Yes, sir, I have examined this record as well as the others and from my examination — no, let me say, I examined those two records — those other two records previously and was unable to find any evidence of slot machines.”

The other two records refer to Exhibits 1 and 2, the general ledgers for 1950 and 1951.

The word previously taken in the context involved petitioner’s testimony as it appears on page 48, 49, 50, and 51 indicates that he is referring to April 1st, 1954.

Richard J. Blanchard:

He examined general ledgers for 1950 and 1951 prior to April the 1st, prior to the return date on the subpoena.

It is his failure to produce these four items, particular items of the general ledgers, the journal and the check register on April the 1st which he admits handling that is the gist of this contempt citation.

We believe the record shows that petitioner acted willfully, both from his testimony at the April 1st hearing and from his testimony during the contempt hearing.

In a contempt citation for noncompliance with a subpoena duces tecum, the burden is upon the defendant, the respondent to the subpoena to establish an adequate excuse for noncompliance.

It must be a legally sufficient excuse.

Mere statements that he looked and couldn’t find the records demanded that he didn’t know there were such records are not compelling upon any court.

In Lopiparo versus United States, the Eighth Circuit refused to accept those statements.

It put the burden squarely upon the Court to prove the adequacy of the excuse for non-production.

Squarely upon what?

Richard J. Blanchard:

Upon the person’s subpoena, the contemnor to justify his noncompliance.

There’s nothing in this record which would indicate that petitioner has established an adequate legal reason for noncompliance with subpoena No. 160.

William J. Brennan, Jr.:

Would you tell me again, Mr. Blanchard, where you say it is that we’ll find his admission that before the return day of the subpoena, he handled items A to D closely?

Richard J. Blanchard:

Record page 47.

William J. Brennan, Jr.:

What line?

Richard J. Blanchard:

It’s about the middle of the page, Your Honor.

William J. Brennan, Jr.:

Well, that’s the one, “No, let me say I examined these other two records?”

Richard J. Blanchard:

That’s right.

William J. Brennan, Jr.:

Previously.

Richard J. Blanchard:

Previously.

William J. Brennan, Jr.:

And you suggest that that means exhibits —

Richard J. Blanchard:

Previous —

William J. Brennan, Jr.:

Well, it’s the general ledger for 1950 and the general ledger for 1951.

Richard J. Blanchard:

Exhibits 1 and 2.

William J. Brennan, Jr.:

That they — that this means that he admits he examined it before the return day of the subpoena.

Richard J. Blanchard:

That’s right because the word “previously” when taken in context with the next three or four pages indicates that it was prior to your testimony here on April 1st, 1954.

William J. Brennan, Jr.:

Now, where is it you say there’s an admission by him that he examined the journal and checklist before the return dates?

Richard J. Blanchard:

If I gave the impression, Your Honor, I’m sorry I didn’t intend to give that.

William J. Brennan, Jr.:

I’m sorry.

The only —

Richard J. Blanchard:

The only admission is to the general ledgers.

William J. Brennan, Jr.:

There’s nowhere out — no admission at all as to the general or check register?

Richard J. Blanchard:

No, Your Honor, there’s no admission to those.

The reason the Government relies upon journal and check register is because they were introduced into evidence which establishes their existence.

William J. Brennan, Jr.:

Their existence you mean at the offices of Mayflower.

Richard J. Blanchard:

At the offices of Mayflower.

William J. Brennan, Jr.:

Before the return date of the subpoena.

Richard J. Blanchard:

Before the return date.

They cover a fast period of time, but there is no admission as to the journal or the check register.

The other Exhibits, 5 to 15 are only those documents which petitioner brought with him on April the 1st when he made return to subpoena No. 78.

They do not establish a case of contempt against petitioner.

In other words, what you got here is a (Inaudible) was it not?

Richard J. Blanchard:

10 months.

And the F.B.I.(Inaudible)

Richard J. Blanchard:

Yes, Your Honor.

Now, these are the basic control books of the corporation, the general ledgers.

What was the relationship of the F.B.I. search with the (Inaudible) April 1 return date?

Richard J. Blanchard:

On the April 1 return date, the Court was dissatisfied with the return made and then issued the impounding order.

The impounding order was executed by the United States Marshal following April the 1st.

I think it was the second or third that they put him on.

The petitioner —

Felix Frankfurter:

Is there an objection to the breadth of the subpoena?

Is there objection to the breadth of the subpoena?

Richard J. Blanchard:

There was by defendant Paster when he moved to quash.

The Court overruled that.

Petitioner before this Court last Thursday stated that there was no objection imposed in this case at this time to the breadth of the subpoena.

I think it’s significant to know that petitioner, during April the 1st testimony, stated that he did not examine the daily ledger.

And now, we find him during a contempt hearing stating that he had examined it previously.

So the Government itself has not initiated the proceeding (Inaudible) sua sponte.

Richard J. Blanchard:

That’s right, Your Honor.

Felix Frankfurter:

But isn’t that one way or the other?

Richard J. Blanchard:

It is useful to point out that the judge was completely conversant with all the facts of the case, Your Honor.

Also, it is indicated that the Government (Inaudible)

Richard J. Blanchard:

We’d indicate that too.

Felix Frankfurter:

Is that relevant?

Richard J. Blanchard:

It would in pointing out the fact that Peterson’s testimony was not germane to specification 3.

It didn’t prejudice the trial court unless we wouldn’t assume that it would prejudice the trial court who had heard the testimony in its original forms.

Petitioner made an argument that he should not be held in contempt because he was only vice president and not familiar with the accounting principles of the Mayflower Distributing Company.

We believe that that answer, that contention has been adequately answered by this Court in the White, the Fleischman, and the Wilson cases in which it is held proper to address a subpoena duces tecum to a corporation and impose a burden upon the officers to make a return thereof.

In this instance, petitioner, however knowledgeable he was of accounting or corporate procedures, did submit himself to the Court, did assume the responsibility of making this return.If he is not held fully accountable — accountable for compliance with this subpoena which he has attempted to answer, it would be open a door to easy evasion to any subpoena.

Take the least informed man in the corporation and have him make the return, he also makes the objection that there was not adequate time given to him to prepare his defense.

Subpoena No. 160 was issued March the 22nd and served March the 25th.

He testifies that he examined it shortly after it was served upon the Secretary, Walter Johnson, of the Mayflower Distributing Company.

He conducted a search for the documents.

Walter Johnson then went on to North Dakota to testify to be present on March the 29th when the argument was held upon the motion to quash and then he called the petitioner to collect the documents and bring them on to North Dakota.

Felix Frankfurter:

What is — what is the objection as to inadequacy of opportunity to do what?

Richard J. Blanchard:

He claims that he didn’t have adequate opportunity to prepare his defense to the specification.

Felix Frankfurter:

Well, I so understood you when you started out but then you went over to the evidence.

What’s the evidence on that?

I don’t see the bearing of —

Richard J. Blanchard:

By just pointing out the chronology of it, Your Honor.

Felix Frankfurter:

(Voice Overlap) subpoena was relevant to that matter.

Richard J. Blanchard:

Pardon?

Felix Frankfurter:

The — the opportunity of — of producing what he was asked to produce isn’t relevant to that company.

If I understand it, the objection is he didn’t have time to respond to these specifications, is that right?

Richard J. Blanchard:

That’s right.

Felix Frankfurter:

And what are the — what are the dates?

What is the time?

Richard J. Blanchard:

The dates on the —

Felix Frankfurter:

(Voice Overlap) —

Richard J. Blanchard:

The show cause order was issued April 23rd and returnable April 27th.

Richard J. Blanchard:

Now, that gave him four days to prepare his defense.

Felix Frankfurter:

What he — what did he do on April 23rd?

Richard J. Blanchard:

Then he asked for further time to examine the documents in the Court.

The Court gave him until 3 o’clock that afternoon then they returned.

He renewed his objection to —

Felix Frankfurter:

(Inaudible)

Richard J. Blanchard:

10 in the morning, Your Honor.

Felix Frankfurter:

10 in the morning.

Richard J. Blanchard:

At that time, he renewed his objection to the lack of time and the lack of bill of particulars.

We believe that he had adequate time.

Felix Frankfurter:

All of these represented by counsel?

Richard J. Blanchard:

It is represented by counsel, altering the contempt hearing.

William J. Brennan, Jr.:

I gather your point is, Mr. Blanchard, that between 10 and 3, among other things he examined were these items A, B, C, and D.

Richard J. Blanchard:

That’s right.

William J. Brennan, Jr.:

And that he should, from an examination of them, have been able to recollect whether in fact they were among the things he examined before April 1st, is that it?

Richard J. Blanchard:

That’s correct, Your Honor.

They are the basic corporate documents.

They are the documents which he entered into evidence.

William J. Brennan, Jr.:

Then we came back at 3, your point is that in effect he admitted in the testimony you referred to me too earlier, that he had before April 1st examined at least A and D (Inaudible)

Richard J. Blanchard:

That’s right.

That’s correct.

William J. Brennan, Jr.:

Now, is it further somewhere in the — is it further somewhere in this evidence, some connection between certain sheets in those general ledgers and the dates that the subpoena referred to, whenever they were as to sales of used machine?

Richard J. Blanchard:

Well, in that point, we refer to the supplemental record to the list of exhibits on page 51 of the supplemental record.

William J. Brennan, Jr.:

Now, this is — this is the part of the supplemental record that you say remains germane to the certain specification.

Richard J. Blanchard:

Remains germane.

It was not objected to by petitioner in his motion to strike.

And it’s also of interest to note that on page 106 and 107 of the record, the parties, petitioner and the United States entered into a stipulation that these exhibits would be considered by the Court of Appeals.

And this is listed on page SR 51 supplemental record —

William J. Brennan, Jr.:

Now, looking at 51, I gather those A, B, and Cs, (Inaudible) Sales, Paster and Mayflower, is that it?

Richard J. Blanchard:

That’s right.

William J. Brennan, Jr.:

Those are the particular dates that we’re concerned with or they were concerned with at the trial?

Richard J. Blanchard:

Those were the particular dates they were concerned with on the Christianson retrial.

The Johnson Act which was alleged to be violated —

William J. Brennan, Jr.:

Incidentally, was Christianson convicted at any trial?

Richard J. Blanchard:

I believe he was, Your Honor.

William J. Brennan, Jr.:

Without the benefit of at least this evidence, was that it?

Richard J. Blanchard:

Well, they got this evidence against him by virtue of the impounding order.

This — this —

William J. Brennan, Jr.:

They used at any event.

Richard J. Blanchard:

It was used —

William J. Brennan, Jr.:

Against.

Richard J. Blanchard:

— against them, yes.

And then this is the procedure that grew out of it.

It’s the Government’s position that the conviction on specification 3 being valid.

And since the sentence of the year and a day was within the limits which this Court — which the trial court could have imposed upon any one specification that that sentence should be sustained even though the other two specifications are discarded.

Felix Frankfurter:

Since he can’t tell, that would have been reviewed and taken.

The appropriateness of the sentence by the — by the District Judge had the only one specification (Inaudible)

Richard J. Blanchard:

Not specifically, Your Honor, but he had once — one — he had one general transaction.

Felix Frankfurter:

Generally.

Anyway, he — there’s no basis for making any judgment as to what Judge Vogel (Inaudible) would have thought was a mete punishment if only specification 3 or if one which he had formulated and charged.

Richard J. Blanchard:

We believe, and of course, there’s no solid foundation in fact for it.

It’s conjecture.

The best you can do in this circumstance is that there was one general transaction of petitioner in relation to the Court, a general disobedience or noncompliance with the subpoenas.

It was the general conduct as set forth in specification or captured in specification 3, epitomized in specification 3.

Felix Frankfurter:

Well, that isn’t what contempt proceedings that were avowed a general transaction as to be specific if you will recognize —

Richard J. Blanchard:

Specification 3, we believe this.

Felix Frankfurter:

That’s the one we call for and he made 3 and 2 are not sustainable on the Government’s —

Richard J. Blanchard:

That’s right.

Felix Frankfurter:

— appropriate recognition here.

So, when you say, “You’ve got to do the best you can,” I suggest one better way to do that is to go back and have Justice Vogel decide what he would have done on — what he would do on reflection to those specifications are.

Felix Frankfurter:

I think that’s better.

Richard J. Blanchard:

We —

Felix Frankfurter:

Guess what he would do —

Richard J. Blanchard:

We agree that the —

Felix Frankfurter:

— or what — what he could do.

Richard J. Blanchard:

That the maximum relief petitioner is entitled to in this case would be a remand for resentencing —

Felix Frankfurter:

Well, that’s a different —

Richard J. Blanchard:

— but not a retrial.

Felix Frankfurter:

They were not up to this point or what to do with the sentence.

Richard J. Blanchard:

Yes but, if I may be permitted to add on this point, Your Honor’s position is that at the dicta in the Gompers case that when a general verdict is returned upon several counts, it is presumed that some of the sentence is imposed upon each count.

However, position of this Court in Whitfield versus Ohio where a general sentence was imposed upon two counts and the Court questioned the validity of one count and threw it out, they still did not disturb the basic sentence.

And on the Whitfield case, that was tried to the Court.

Felix Frankfurter:

Is that a state case?

Richard J. Blanchard:

That was Whitfield versus Ohio involved prison-made goods, prohibition — Ohio’s prohibition of sale of prison-made goods.

The cases relied upon petitioner Stromberg and Williams are inapposite here because in that situation, the case was submitted to the jury upon two general theories, one of which was valid and the other, invalid.

It was impossible to tell from the general verdict as distinguishing the general sentence upon which theory of the case the verdict rested.

Therefore, the Court properly remanded the case for retrial, but here, we have a valid conviction on specification 3.

We had a general sentence of the year and a day and we believe that it can be sustained.However, if the Court deems otherwise, we further contend that the only relief petitioner is entitled to is a remand for resentencing and not for retrial on specification 3.

William J. Brennan, Jr.:

But you won’t admit —

(Voice Overlap) —

William J. Brennan, Jr.:

— to this entitle at least that much.

Well, at least that.

(Voice Overlap) —

William J. Brennan, Jr.:

You will not admit —

Richard J. Blanchard:

Oh no, No.

William J. Brennan, Jr.:

— the Government will not admit to this entitle at least that much.

In other words, to go back to the trial judge and resentence.

Richard J. Blanchard:

Well, we believe that a year and a day is not an excess of sentence in view of the sentence of 18 months imposed upon Mr. Lopiparo in the Eighth Circuit, and in view of the fact that he was a member of the bar and is held to a higher degree of compliance with the orders of the Court.

Is there anything to show in this record that in imposing the contempt sentence, the judge admitted — influenced by the fact that this man has been acquitted in the first trial, the first batch of trial?

Richard J. Blanchard:

I believe there’s something in this memorandum opinion.

He made some comment about that, didn’t he?

Richard J. Blanchard:

At some place, he remarked that he wasn’t sure that this petitioner would have faired so well if he had been retried the second time.

What’s the maximum sentence he could have gotten on the contempt?

Richard J. Blanchard:

There’s no discretion in the Court, Your Honor.

There’s no limit, is it?

Richard J. Blanchard:

No limit.

Earl Warren:

Mr. Blanchard, did you give any thought to the question whether if this case goes back, it should go back to the District Court or should go back to the Court of Appeals in the light of all of these concessions that you — that you make as to count one and count two and — and it seems to me that in this case, isn’t there also the — the question of whether the trial court used the correct rule of criminal procedure?

And did you give any thought to whether it would be appropriate if we we’re going to send it back — to send it back to — to the Court of Appeals to clean up this whole thing and send it — send it up here if necessary on — on the précising that you do contend because apparently you contended one thing in the appellate court and you’re contending entirely different thing here?

Richard J. Blanchard:

But we’re not contending as much here, Your Honors.

It was contended on the appellate court.

Earl Warren:

Well, you’re not and I should say you’re not.

You’re — what you’re asking for exactly the same result and you don’t appear to have any cases exactly in point as the Whitfield case and there the — the nearest thing you have in point on — on this question of whether a man can be where there’s one count and — there are three counts and the judge gives him one — one year on — on all counts combined that if the Government waives two — two of the counts that we should still assume that — that one year is adequate or is proper.

Richard J. Blanchard:

Well, I don’t think we’re going to find any case quite in point on this, Your Honor.

The most the cases we’ll point out and the most I can cite them for is that the Whitfield case doesn’t follow the dicta of Gompers.

Now, it’s very difficult, and I can — concede that it’s extremely difficult to second guess what the trial judge meant or what he had in mind.

Did he intend to prorate his sentence over a year in a day over three specifications?

Earl Warren:

Yes.

Richard J. Blanchard:

Did he intend to put it on one?

We’d like to think that the Government contends that he probably put it on one because it was one basic transaction.

Earl Warren:

But it not might and not be entirely different in the eyes of — of a judge to have a — a subpoena evaded and another thing if the — if the person evading the subpoena comes in and gives either purged testimony or — or the equivalent of it on the — on the hearing?

Richard J. Blanchard:

Well —

Earl Warren:

It might — it might not be considered that — that those two things combined or much more serious offense than if the person had just evaded through — through in action or negligence or something of that kind?

Richard J. Blanchard:

Your Honor, I’d like to —

Felix Frankfurter:

With this minute, may I ask what the Chief Justice is saying?

Not only combined but is separate, suppose he did deem his one transaction, it’s not too difficult to assume that a judgment be more painless, more deserving of punishment pertinently rather than withholding documents.

I’m not suggesting that there’s not — obeying a subpoena is commendable or isn’t (Inaudible) thing, but I do suggest that the generality of (Inaudible) much more likely to impose to produce the documents.

They would think that isn’t anything like that, it’s going out on this stand and falsely swearing.

(Inaudible) a part from Congress, he may have thought the year was a good thing for specification 1 and when he came to specification 3, questionable.

Richard J. Blanchard:

Well, that is one of the questions before this Court.

I presume, Your Honor, it should be sent back to the Court of Appeals and as much as they have had two opportunities to rule on it, they ruled on it on the direct appeal and on the — petition for rehearing which they denied.

Felix Frankfurter:

Could vacate the sentence?

Richard J. Blanchard:

No, they didn’t.

Felix Frankfurter:

They (Voice Overlap) —

Earl Warren:

No.

Richard J. Blanchard:

They affirmed.

Felix Frankfurter:

Pardon me?

Richard J. Blanchard:

They affirmed.

Felix Frankfurter:

No, no, No.

Could change the sentence?

Richard J. Blanchard:

No, they couldn’t, Your Honor.

Felix Frankfurter:

So that if the sentence has to be adjusted and measured in this case and it has to be by the District Court.

Earl Warren:

But they could send it back and —

Richard J. Blanchard:

They could send it back.

Earl Warren:

.– they can send it back to the District Court in the light of this changed position of the Government wherein you abandon that your case on — on two counts of the three.

They could do the same thing that we do, could they not?

Richard J. Blanchard:

Yes, they could, Your Honor.

Earl Warren:

If you say you think would not be improper for us to do, they could then — they could send the case back, cleaned up to the — to the District Court to — to do what it’s all fit in that regard, could they not?

Richard J. Blanchard:

Well, they could.

Earl Warren:

Do you think there would be anything improper in that procedure if we believe that it should go back to any court?

Richard J. Blanchard:

I see nothing improper, Your Honor.

Earl Warren:

Thank you.

Mr. Solicitor —

Eugene Gressman:

May it please the Court.

Earl Warren:

Mr. Gressman.

Eugene Gressman:

I would just like to add a few comments to what I had in my remarks last Thursday.

It seems that the Government has now retreated even further from the position it took in its briefs and has orally announced that it no longer seeks to support any part of the third specification, except as to the two or possibly four.

I wasn’t exactly clear with the number of items, the first — few items in specification No. 3, thereby abandoning some 18 or more of the items which are set forth in specification No. 3.

Considering that there was no adequate proof apparently that — that those items were in existence.

Now, I would also add one other item.

Felix Frankfurter:

May I ask you before you move on?

Felix Frankfurter:

I can see no legal difficulty involved.

I’m not talking about this one.

I can see no legal difficulty in sustaining a specification which lists 10 or 12 items, 12 items that can make proof of only three of the 12.

I see no difficulty in concluding that there was less specification sustained.

In other words, the Government must have sustained every subdivision in specification 3 —

Eugene Gressman:

That’s —

Felix Frankfurter:

— sustained the specification.

Eugene Gressman:

That’s true, Your Honor.

Felix Frankfurter:

Do you mean that?

Eugene Gressman:

That’s right.

Now, I would also point out to Your Honors —

William J. Brennan, Jr.:

Excuse me, Mr. Gressman —

Eugene Gressman:

Yes.

William J. Brennan, Jr.:

— before you leave that, at 47, have you any comment on the sufficiency of what —

Eugene Gressman:

Yes —

William J. Brennan, Jr.:

— Mr. Blanchard referred us to —

Eugene Gressman:

Yes, I do —

William J. Brennan, Jr.:

— which is sufficient?

Eugene Gressman:

— Your Honor.

That seems to me to mean and it’s not entirely clear since this was a statement of his which was interrupted by the Court.

It was not completed and we will never know from this record what he actually meant there, but it is my reading of that and my understanding that he was referring to the fact that he had examined those two records during the time allowed him that same day, previously which was between the hours of 10 and 3 o’clock.

That was — that was the first time he’d ever seen those records as far as this record indicates.

William J. Brennan, Jr.:

Now, what he was saying here was that in fact after examining him on that very day, he found in them no reference to any (Voice Overlap) —

Eugene Gressman:

Those were slot machines and that brings up the point, Your Honor, that I emphasize last Thursday and that is that it’s not enough to show that these two or three items were actually in existence.

And in the courtroom, it was also essential to show that there was a relationship between the contents of those records and what was called for by the — the rather broad and encompassing nature of the subpoena No. 160, and by —

William J. Brennan, Jr.:

Well, now, what is the significance then of what Mr .Blanchard referred us to at page 51 of these lists of exhibit?

Eugene Gressman:

Well, now, you — again, he’s referring to the supplemental record and while I don’t think that any admission or a failure to object to a particular portion give — adds to the power of the Court of Appeals to consider or add to something which is not —

William J. Brennan, Jr.:

Well, on the premise — on the premise that there was no — nothing irregular —

Eugene Gressman:

Yes.

William J. Brennan, Jr.:

— about the Court of Appeals looking at it.

William J. Brennan, Jr.:

As I understood Mr. Blanchard, there was some stipulation before the Court of Appeals that in fact the ledgers of 1950 and 1951 contain these references or at least the ledger of 1950 to sales of used slot machines.

Eugene Gressman:

Yes, Your Honor.

Now, on that point —

William J. Brennan, Jr.:

Was that the fact?

Was that stipulated on behalf of the defendant?

Eugene Gressman:

I’m not clear about that, Your Honor, if — if it is true, it must be in the record but I’m not — at the moment, I’m not familiar with that fact.

But at least, Your Honor, it seems to me that these list of exhibits in page 51 of the supplemental record, if taken as true or stipulated to, does not confirm the fact that the items mentioned in those ledgers were what — were relevant under subpoena No. 160.

Now, you have these conflicting statements by the defendant himself during the testimony that they did not name any evidence of slot machines.

And so, if — if you have — it seems to me a clear conflict there between his statements and this itemization in the listing and that — that clearly put into issue this very question of the relevance of these exhibits, of these two or three exhibits to subpoena No. 160.

And if you’re going to refer to the basic standard of proof in these cases, namely, that you prove guilt beyond all reasonable doubt, it seems to me that you cannot affirm a conviction which is based upon such a conflicting testimony on the basic question of contempt.

And —

Felix Frankfurter:

I don’t quite follow.

I must have misunderstand what you’re saying.

Assume — assume the documents (Inaudible) and they’re not produced — will or not produced, must you go beyond that and show that if they had been produced, they would have revealed evidence relevant to the main case?

Eugene Gressman:

No, I say that if they are — if — if they are in the record and that an issue is raised as to their relevance, it’s incumbent upon the Government to prove that they are what it —

Felix Frankfurter:

In the contempt proceeding?

Eugene Gressman:

In the contempt proceeding, Your Honor.

Felix Frankfurter:

I don’t understand why.

Eugene Gressman:

Because the contempt proceeding has to stand alone by itself.

Felix Frankfurter:

That’s right, and I should think that you don’t try out there the relevance of documents asked to be produced in the main case.

Eugene Gressman:

When you have a — a general subpoena, Your Honor.

Now, I’m not saying it’s unduly vague and broad, but when you have a general subpoena calling for —

Felix Frankfurter:

I don’t know what that means, general subpoena.

Eugene Gressman:

Well, calling without specifying the particular items which are called for as later specified in the order to show cost, but when you have a — a subpoena which calls not for all the records of the corporation, not for any particular record but for certain categories of records.

Hugo L. Black:

What category here?

Eugene Gressman:

Well, you’ll find those —

Hugo L. Black:

What category here in connection with — as related to your argument now?

Eugene Gressman:

Categories which would indicate the sales of slot machines, coin operated devices whether new or used between certain specified dates.

Now, this corporation did — does business other than with relation to those particular items that had for example a — a lot of — of business connected with the servicing of slot machines or coin operated devices rather than sales or purchases.

So that — they’re not now calling for all the records —

Hugo L. Black:

May I ask you?

Is it clear that they can get just what you (Voice Overlap) —

Eugene Gressman:

Yes.

Hugo L. Black:

— before you move on?

Eugene Gressman:

Well —

Hugo L. Black:

Are you saying there that they asked for certain papers relating to slot machines for answers?

They didn’t tell you what the papers were —

Eugene Gressman:

That’s right.

Hugo L. Black:

— and all papers relating to slot machine.

Eugene Gressman:

Between certain specified dates.

Hugo L. Black:

And is it your argument that it’s the duty of the Government to show that he had paid for this plus the fact that they’re related to slot machines?

Eugene Gressman:

That’s right, Your Honor, particularly where he brings that into issue in his testimony.

Felix Frankfurter:

Did they — did the Government characterized the papers they wanted as papers related to slot machines or did the Government asked for certain books of account within a certain date, which was it?

Eugene Gressman:

They asked for certain books of account relating to slot machines.

Now —

(Voice Overlap) —

Eugene Gressman:

— that may or may not include all the — the books of account it has.

William J. Brennan, Jr.:

Well, Mr. Gressman, is it a little more definite than that?

That’s at page 24.

Is this the subpoena?

Eugene Gressman:

That’s right.

William J. Brennan, Jr.:

Now, that includes, for example, eliminating the immaterial or irrelevant types of papers, ledger sheets entered in July 1, 1950 through April 30, 1951 reflecting any and all purchases and sales of all slot machines, flat-top or console, coin-operated device, whether new or used with any persons as far as we’re concerned.

Eugene Gressman:

That’s true, Your Honor.

William J. Brennan, Jr.:

That’s rather more specific, isn’t it, than —

Eugene Gressman:

Well, no, Your Honor, there — there — it’s conceivable that there are bookkeeping records, ledger sheets, invoices or whatnot which do not reflect purchases and sales of slot machines or coin operated devices.

They did other business than — than slot — sale and purchases of slot machines and coin operated devices.

And some of their bookkeeping records may very well not have reflected any of the — the subject matter with which this subpoena is concerned.

Felix Frankfurter:

How did he object to it?

Did he respond to this subpoena and — as — in effect say, “I’m producing everything that comes within the scope of the subpoena, so here it is?”

Eugene Gressman:

To the best of my ability, yes.

Eugene Gressman:

Yes, he said that I am responding and trying to bring in everything that I don’t have an accounting experience, I’m not too familiar with all of these bookkeeping records, ledger sheets and so forth, but I — I have attempted to comply.

Felix Frankfurter:

Then, why don’t you attack your argument just what it is?

Why don’t you say we’re never asked to produce the general ledger of the 1950?

Eugene Gressman:

Well, that’s another way of saying.

I think the same thing that he — he was not —

Felix Frankfurter:

That’s a very different thing.

Eugene Gressman:

— he was not asked to produce the — the general ledger for 1950 to 1951 as such.

Felix Frankfurter:

What I’m saying is he didn’t disobey it, not that it wasn’t proven relevant.

If you say he didn’t disobey it because he was never asked to produce it, I can understand that.

If the record bears it out, I can understand that.

That’s a very simple position.

That’s the situation.

Harold Burton:

Well, Mr. Gressman, you were asked to produce the — the record sheets relating to slot machine.

And on page 51, which — of the supplemental record, records indicate that sales, sales of new slot machines may dispose.

Well, that means to me that — that you were asked to produce those particular records showing those sales of slot machines, do I read that properly?

Eugene Gressman:

Well, as I understand this list of exhibits, they refer only to the exhibits which were introduced through the petitioner.

Now, they don’t have any relation to the — direct relationship to the subpoena.

I mean these were — what were —

Harold Burton:

There — there was proof — isn’t that proof — whether it’s correct proof or not, but isn’t that proof that they were records of February 1950 relating to slot machines on your ledger?

Eugene Gressman:

Well, now, you have this testimony of his that — that there was no such evidence in that.

Harold Burton:

That may be —

Eugene Gressman:

Yes.

Harold Burton:

— but the judge would have a right to — to appraise the evidence as between one who will testify that they were records and this man who testified that there weren’t any records, did he not?

Eugene Gressman:

Well, assuming that — that these were —

Harold Burton:

Let’s assume that this was a testimony before the judge on 1951?

Eugene Gressman:

Well, presumably, Your Honor.

Now, that — that’s not absolutely clear that — that these items were —

Harold Burton:

Well, some list of exhibits.

I — I don’t know.

I maybe thinking of it improperly or wrongly, but it looks to me like you have definite proof before the judge.

Harold Burton:

The proof may be right or wrong that there were slot machine records called for by your No. 160 subpoena.

Eugene Gressman:

Well, Your Honor, it — it’s — it seems to me rather difficult to say that — that they were specifically the ones that were called for by the subpoena without some further elaboration or proof of them.

William J. Brennan, Jr.:

Was there any speculation?

Harold Burton:

And — well, that’s the record of February of 1950 or maybe not.

Eugene Gressman:

No.

That’s before July 1, 1950 when the — the subpoena calls for it.

William J. Brennan, Jr.:

Where is this stipulation in the record, Mr. Gressman, that deals with that 1951 matter?

Eugene Gressman:

Well, it appears on page 106 of the first record.

Harold Burton:

Well, if the first one is February, the next one is October and the next is December.

The date is July 1950 to April 1951.

Eugene Gressman:

Yes.

Well, now, Your Honor, of course it’s — it’s still a question as to what is meant by slot machines.

I mean, that’s a — not a term of art particularly.

It’s — it’s a generic term which may require some elaborations as to what is meant by that in relation to whether the — the matters in this exhibit were really slot machines or exactly what they were.

I think it’s — the matter was put into issue by the defendant and I think it requires elaboration and it points up what I think is the basic issue in this case and that is the reliance on the knowledge of Judge Vogel in — as a substitute for proof of contempt beyond a reasonable doubt.

And you have not only this, but you have an entire absence in this record of the order of March 29 issued by Judge Vogel, which is also one of the basic elements of this third specification which never appears in the record.

I have searched from beginning to end of both the supplemental and the regular record, and I have never found any identification or indication of what that March 29 order reads or provides.

And yet, that is one of the reasons upon which this petitioner was found guilty of contempt under the third specification.

And that this is entire general approach to the case which I believe requires condemnation, this reliance upon the judge’s knowledge of the case rather than insisting.

Hugo L. Black:

Knowledge acquired where?

Eugene Gressman:

Pardon?

Hugo L. Black:

Knowledge acquired where?

Eugene Gressman:

Presumably, during the course of the criminal trial and —

Hugo L. Black:

In which this man that was tried for contempt here was not a defendant.

Eugene Gressman:

That is right.

He was not a defendant.

He was not present.

Hugo L. Black:

What you’re claiming — what you’re claiming there is, as I understand it, that it was impossible of the evidence of printed record to show that there was any failure to produce the particular documents you have called for.

And that the Government is attempting to rely on knowledge that the judge has in other — in another trial without offering the evidence anew where the defendant could cross-examine.

Eugene Gressman:

That’s right.

Eugene Gressman:

And I think he —

Felix Frankfurter:

By knowledge, you mean Christianson — whatever Christianson’s testimony?

I thought that’s what you mean by knowledge out there for this record.

Eugene Gressman:

Knowledge, I’m not sure.

I don’t mean by Christianson.

You mean that —

Felix Frankfurter:

The F.B.I. agent.

Eugene Gressman:

Peterson.

Felix Frankfurter:

Peterson.

Eugene Gressman:

Yes.

Knowledge not only as to Peterson’s — knowledge gained through Peterson’s testimony —

Felix Frankfurter:

The Government disavowed that completely.

Eugene Gressman:

That’s right, but it’s knowledge about these — these particular items that he may have acquired during the course of the previous trial or during the — which knowledge was not thrust upon the defendant in the nature of proper testimony or evidence so that he could refute or rebut or examine as he saw fit and to take these particular items to — so he could know what the Government’s contention or the Court’s contention was as to their existence or more particularly as to their relevance under the — under the case, under the subpoena.

Felix Frankfurter:

I don’t understand that.

The subpoena gave them the scope of the area within which he was asked to produce things.

The specification gives him bill of particulars as to the failure to produce, either than that, give him more of a notice and all of these connections that he wants to which the director’s testimony.

Eugene Gressman:

Well, Your Honor, it was a very broad — a very exhaustive specification to begin with.

And there were thousands of documents to be examined and to relate to — to attempt to relate to the subpoena and more particularly the ones in the specifications.

And it seems to me that upon such short notice and I deny the Government’s contention that he had from April 1 to prepare for this case.

It wasn’t until April 23rd that he knew for the first time what the specifications of contempt that the judge was citing him for, and he had only that short weekend within a new attorney coming in on the case.

He never had a fulltime attorney previously to that to familiarize himself with this case.

William J. Brennan, Jr.:

Mr. Gressman, may I ask you this?

Are you suggesting something like this that the judge knew because he presided at the second Christianson trial?

That after the subpoena did not produce certain documents, when the — all documents were impounded, documents were found among Mayflowers records which where in fact used by the Government in its case against Christianson and that from that fact, the judge may well have concluded that there had been a disobedience of the subpoena because the records did exist because he had seen them.

They were produced to trial against Christianson.

Eugene Gressman:

That’s entirely —

William J. Brennan, Jr.:

Is that what you’re getting at?

Eugene Gressman:

It’s entirely possible, Your Honor.

William J. Brennan, Jr.:

And that he — he reached this conclusion of disobedience from his knowledge of the fact that the records existed and not from any other, or at least not based solely upon the evidence which was offered against Nilva at the trial for contempt, is that it?

Eugene Gressman:

I think that’s the key to this whole case, Your Honor, is the failure — not so much perhaps of the Government but of the trial judge since he initiated this contempt proceeding to take steps to see that all the basic elements of contempt were presented at the trial and that the petitioner was there confronted with the evidence and given a chance to explain our rebut at that point, rather than relying upon the supplemental records and all the other errors that I think the Government has conceded in this case which the trial judge used to sustain the conviction.

Felix Frankfurter:

But the documents that informed the mind of the judge in the Christianson trial were also documents in this case, but you said —

Eugene Gressman:

Well —

Felix Frankfurter:

— that isn’t good enough because you didn’t have a time to examine.

Eugene Gressman:

I say, Your Honor, there’s no — there’s no proof in this record that there — the — there was an identity between what was introduced at the Christianson case and what he failed to produce here, No.

That is — now, even that is not clear, Your Honor.

The record is quite muddy on that and the petitioner’s counsel in the record below indicates that he never had time to examine.

Felix Frankfurter:

That’s the difference.

That’s — that’s —

Eugene Gressman:

Yes.

Felix Frankfurter:

— that’s — your real contention is, I should think it might be muddy but it’s clear enough to justify the (Inaudible)

All those documents were again in contempt and you said they were, but you say you didn’t have time to examine them.

Eugene Gressman:

Well, I say more than that but he never had time to — there — nobody took time to identify them or find out if they were in existence and what their relevance was.

Hugo L. Black:

As I understand what you saying now, I want to see if I get it clearly.

You’re saying that if you assume that there was enough evidence in the criminal case to identify documents for being the kind accorded (Inaudible) and being the kind that the defendant knew about and failed to produce even if there was such evidence in the criminal trial, there was no evidence and so forth to prove that in the contempt case.

Eugene Gressman:

That’s right, Your Honor.

Hugo L. Black:

And that if defendant in contempt case was entitled to have evidence offered where he could refuse and could cross-examine the witnesses be confronted with them in his contempt.

Eugene Gressman:

That’s — that’s right, Your Honor.

Felix Frankfurter:

But if the documents that were in the criminal trial are also in evidence in the contempt proceeding and if it isn’t and if the defendant in contempt proceeding wasn’t precluded from having knowledge or examined those documents and they are in them and they are in the contempt proceeding, that it isn’t (Inaudible) not merely the abstraction that he didn’t have any evidence.

Eugene Gressman:

Well —

Felix Frankfurter:

All it turns on (a) what documentation there was in the contempt record and (b) whether that documentation can reasonably be brought home for this defendant (Inaudible)

Eugene Gressman:

And — well, that assumes of course that he had proper time to examine those.

Felix Frankfurter:

Well, certainly.

Eugene Gressman:

Yes, but —

Hugo L. Black:

It assumes another thing, doesn’t it?

As I understand your contention, maybe it’s wrong, but you say that the documents themselves although offered in the contempt were not enough in themselves to show their identity.

Eugene Gressman:

That’s right, Your Honor.

Hugo L. Black:

(Voice Overlap) something.

Eugene Gressman:

It takes more than — than a — an outline of what is in that exhibit to identify it with the subpoena as within the scope of the subpoena, particularly where he raises that issue himself and denies that it has any relationship to that subpoena.

It seems to me it’s incumbent on someone, the judge or the — the government prosecutor to confront him with the evidence of that relationship so that he can adequately defend himself on that issue.

Could I ask you one question before you sit down just to confuse or clarify things?

I don’t know which.

Assuming that this subpoena is construed as calling only for documents that relate to sales of — or purchases of used slot machines, is there anything in these ledgers, was anything shown by the Government that these ledgers did contain that sort of information or did they just rest on the ledgers?

Eugene Gressman:

Well, they could not have rested on anything more than that.

I mean there was not — there’s nothing in there —

Is there anything in the record to show that?

Eugene Gressman:

No, just the records themselves apparently.

Yes.

Eugene Gressman:

And that they were introduced by the petitioner rather than by the Government.

Earl Warren:

Mr. Gressman, as I understood you this organization, this Mayflower Corporation is both a sales organization and a service organization.

Eugene Gressman:

That is my understanding, yes.

Earl Warren:

Now, do they sell anything other than slot machines?

Eugene Gressman:

Well, as I understand it they also — within the terminology coin operated devices also sell such things as cigarette dispensing machines, soft drink, coffee dispensers and the like.

Earl Warren:

They do that too.

Eugene Gressman:

Oh, yes, Your Honor, they’re not confined to the — the ordinary slot machine or the one-armed bandit type of thing, it’s all these in which you insert a coin into the machine and —

Earl Warren:

Yes, I see.

Eugene Gressman:

— for one purpose or another.

Earl Warren:

Or coin operated machines.

Eugene Gressman:

Yes, sir.

Earl Warren:

Tell me how — how big was this business?

Eugene Gressman:

I am afraid I’m not that familiar with it to know.

Earl Warren:

Do you know how many employees they have?

Eugene Gressman:

They have apparently, half dozen office employees which I think was indicated somewhere in this record.

Earl Warren:

The point I’m getting at is would it be an insuperable task to distinguish between the items of service and the items of sale in that — in a business of that size?

Eugene Gressman:

Not to — to one who was familiar with the — the records you mean?

Earl Warren:

Yes.

Eugene Gressman:

Possibly not to one who is familiar and who is with the records and who has accounting and bookkeeping experience, no, which —

Earl Warren:

Well, would it be difficult, do you think, to — was it so large that it’d be difficult to segregate the slot machines from the sales of cigarette machines, gum machines and things of that kind?

Eugene Gressman:

Well, it — it’s possible that it was difficult particularly to this petitioner as evidenced by the fact that when the government agent ceased the entire records in the impounding orders, they ceased literally thousands upon thousands.

We took a whole truck full of records out of there, and I don’t know whether that reflects upon the — the competency of their filing system, but there were literally tens of thousands of various ledgers, bookkeeping items, files and the like which required a — a corp of F.B.I. agents and accountants to go through.

It took them three or four days to go through.

Earl Warren:

They might — it might take them that time to go through but should it take anyone who knows the bookkeeping system of the company who was an officer of the company and — and who is the one that the — that the company selected to — to make this return on the subpoena?

Eugene Gressman:

Well, presumably not the one who is familiar and who is the custodian of those records and the record —

Earl Warren:

Well, he’s the one — he’s the one that the corporation chose to make this return before it, isn’t he?

Eugene Gressman:

Only as a last measure because everybody else in official status there was tied up with the trial, which was beginning on — practically on the return date of this subpoena and the Secretary of Treasure was out on that business.

The president was away from there and this petitioner who did nothing but legal business for the corporation was called in at the last minute on the phone and asked, “Would you please try to make a return on this subpoena?”

And despite the fact that he had no knowledge of the records and had no business or accounting experience, he did make what is an unchallenged good faith effort to go through these thousands of records.

Earl Warren:

Is that all in the record?

Eugene Gressman:

That is all in — and explained in the testimony.

Earl Warren:

The — does the corporation or — or does the — the petitioner here claimed that he was not the proper person, that someone else should have — should have done that?

Eugene Gressman:

We — we claimed and it’s set forth at length in our brief, Your Honor, that under these —

Earl Warren:

No, is it claimed in the — in the trial court when these proceedings are going along?

Eugene Gressman:

I don’t think the claim was made at that point, Your Honor, No.

But we claim that under this unique circumstances that a good faith effort on the part of one who is not officially responsible for the records, which is the terminology used in the Wilson case that that is an adequate excuse for failure to produce records and unless — if there is some proof of bad faith on his part that he should not be held in contempt for failing to produce particular items as to which he made a good faith effort to find.

Earl Warren:

But one of the things that — that bothers me here is that if — if the Court issues a subpoena duces tecum to — to a corporation and the corporation chooses anyone at once to respond to the — to the subpoena, it chooses the vice president of the — of the company and he doesn’t produce the records and he’s committed for contempt, should it be open to him or to the corporation to say, “Well, we didn’t — we didn’t have the proper person return this.

You can’t hold this man accountable because he really didn’t — he really didn’t know anything about what we should have done was to have our — our controller or head bookkeeper or somebody else who knows the record to this but this man didn’t so — so there’s no way of enforcing a subpoena.”

Eugene Gressman:

Well, I wouldn’t say there’s no way of enforcing it, Your Honor.

They did secure through the impounding order but more directly to your question under the unique circumstances of this case were here, all the responsible officers were tied up by the pendency of this criminal trial and where this individual who is described by the trial judge himself as merely a nominal officer, a nominal vice president of this company whose duties were so illegal in nature, where he voluntary attempts to comply.

It seems to me that you should not hold him to the high uncompromising standard that a responsible officer, let’s say the president or the Secretary of Treasure would have in responding to that, that you will recognize a good faith effort in this — on this petitioner’s part where you might not say that was enough on the part of a person who is primarily responsible for the — for those records and the keeping of those records.

Felix Frankfurter:

May I take into account the totality of the situation that this was a lawyer?

Eugene Gressman:

Well, Your Honor, that raises the question as to how much of a lawyer he was.

He was —

Felix Frankfurter:

How can we decide that here?

Eugene Gressman:

Not — certainty, he was not a lawyer in relation to this criminal case.

Felix Frankfurter:

You said he at one — the record shows that he said he’s a good enough lawyer, not to need any lawyer to defend him.

Eugene Gressman:

And it’s also — it — it seems to me impossible as far the sentence is concerned to — and the fact that he was a lawyer to dissociate the fact that what really concerned the trial judge apparently and what obviously concerned the Court of Appeals was the first specification.

Felix Frankfurter:

I’m with you on that.

Eugene Gressman:

On — and I think that’s reflected in the sentencing and — and I think that the fact that he was a lawyer, he’s probably primary in that.

Felix Frankfurter:

I’m with you on the sentencing part.

Eugene Gressman:

And the fact that he was a lawyer, I don’t think distinguishes him here though insofar as his obedience or his attempt to make the good faith search.

Felix Frankfurter:

But it bears on all these things of what he knows, what’s its citation and whether he has time and all of the business that makes difference between a lawyer and a layman who comes into court even he’s very bright and distinguished, he had to be (Inaudible) by court proceedings.

Earl Warren:

But he was pretty closely connected with this whole subject matter, wasn’t he, he was an original defendant in a criminal conspiracy that the others were convicted of, he happened to be acquitted.

Eugene Gressman:

That’s right.

Earl Warren:

And that was all before —

Felix Frankfurter:

Yes.

Earl Warren:

— he was asked to do this and I assume we can infer that he was apparently — he was very familiar with the records of his company in the trial in which he was acquitted.

Eugene Gressman:

The same time the Government had one attempt, one chance to find out what these records were and what were necessary to the trial, the second trial.

And yet, we come along the second trial and they have yet — they’re unable to specify exactly what they want and they engaged in this sort of a fishing expedition to bring in all these categories without specifying at that point what it is they need for this second trial.

It seems to —

Felix Frankfurter:

Then, we have to find out what kind of a lawyer he was on both sides.

Eugene Gressman:

I think that’s a fair conclusion.

Harold Burton:

Mr. Gressman, I just want to make sure of your answer to Justice Harlan.

You said after these books were presented to the Court and the FBI men testified about them, didn’t it appear that some of these records did relate to used slot machine?

Was — wasn’t that clear in the testimony there were some interest in them?

Eugene Gressman:

Of the FBI agents you mean?

Harold Burton:

Yes.

Eugene Gressman:

Well, it’s quite true, Your Honor, but there is no evidence that what the basis of what that FBI agent was stating were the items which were specified in this order to show cause in the third specification particular.

Harold Burton:

They were in these books though, weren’t they?

Eugene Gressman:

Well, we don’t know.

He didn’t set forth in his testimony what was the basis.

He was testifying from general summaries he had made from this entire mass of documents and without specifying what particular items he based his conclusions on as to slot machines and other items.

Harold Burton:

But he did find a substantial number of used sales, sales of used machines.

Eugene Gressman:

From some unidentified source, Your Honor, yes, as far as this record shows.

I — I assume — I — of course, there are other — some other matters in my briefs which I know Your Honors —

Earl Warren:

Yes.

Eugene Gressman:

— will read and consider this case.

Earl Warren:

Fully considered in discretion.